Director of Public Prosecutions v Le

[2018] VCC 1299

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-00687

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRISTAN LE

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JUDGE:	His Honour Judge Carmody
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2018
DATE OF SENTENCE:	20 August 2018
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2018] VCC 1299

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW       
Catchwords:   Conduct endanger life, possess firearm
Legislation Cited:  Criminal Procedure Act 2009

Cases Cited:R v Wyley [2009] VSCA 17, Azzopardi v R [2011] VSCA 372, Berichon v The Queen;Houssein v The Queen [2013] VSCA 319, Basic v The Queen [2015] VSCA 109.

Sentence:  Total Effective Sentence 4 years with a non-parole period of 2 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms E Hill	Director of Public Prosecutions
For the Accused	Mr A S Dickenson	Fitzroy Legal Service

HIS HONOUR:

1Tristan Le, on 14 August 2018, you pleaded guilty to two charges on the Indictment No.H12028463: 

Charge 1, reckless conduct endangering the life of Salim Mohamed on 8 June 2017.  This offence has a maximum penalty of ten years' imprisonment. 

Charge 2, being a prohibited person in possession of a firearm on 13 July 2017.  This offence has a maximum penalty of 1,200 penalty units or ten years' imprisonment.

2At the time of your plea the prosecution summary had the incorrect maximum term of imprisonment of three months on it for Charge 2.  Your counsel was advised by email from this court of this error after the plea hearing had been adjourned.  

3Mr Dickenson appeared on your behalf on 16 August 2018.  He made further submissions on your behalf about the offence of being a prohibitive person in possession of a firearm. His first submission was that whilst a prior conviction for this offence appears on your criminal record on three separate occasions, there is in fact only one prior offence.  The other two mentions of this offence are the result of you breaching previous court orders in respect of that one offence.

4His second submission was that the firearm found on you on the day of your arrest on 13 July 2017 was the firearm you used in your offending on 8 June 2017.  At a subsequent hearing, Mr Dickenson resiled from that submission.  I sentence you for that offence on the basis that it is a different firearm found in your possession from the one you used on 8 June 2017.

5Mr Dickenson's third submission was that your possession of the firearm was for the purposes of personal security rather than some ongoing criminal activity.  He relied upon the Court of Appeal authorities of Berichon[1] and Basic[2] to submit your offending was at the lower end of range for this particular offence.

[1] Berichon v The Queen;Houssein v The Queen [2013] VSCA 319 (18 November 2013)

[2] Basic v The Queen [2015] VSCA 109 (22 May 2015)

6Mr Dickenson's final submission was that the cumulation of the sentences on the two charges on the indictment would amount to double punishment.  You have had two separate firearms in your possession, five to six weeks apart in these two offences.  It is discrete offending on both occasions.  Whilst totality is a proper consideration double punishment is not.

7Pursuant to s.145 of the Criminal Procedure Act 2009, a related summary charge of committing an indictable offence whilst on bail was transferred to this court. You consented of the transfer and pleaded guilty to that charge. The charge has a maximum penalty of three months' imprisonment.

Circumstances of your offending

8The prosecutor tendered a summary of the prosecution opening on the plea which is Exhibit “A”.  The opening was read in open court.  You were 23 at the time of your offending.

9On 8 June 2017, at approximately noon, you had attended 56 Derby Street in Kensington.  This address is a housing commission complex with a children's playground in the front of the buildings. 

10You attended with your co-accused, Savva Tsiavis, and other persons known as Redwan Adem, Halimo Hassan and Sarah Summers. 

11You and Tsiavis were each armed with a firearm and shot at Salim Mohamed  across the children's playground at the Kensington Housing Commission Complex.  You arranged to pick up Tsiavis from his Southbank apartment before driving with the other persons to the Kensington Housing Commission Complex.

12On arrival at the Derby Street address you and Tsiavis got out of the vehicle. Your companions, Adem, Hassan and Summers remained in the vehicle.  You arranged to meet your intended victim by telephone. 

13Mohamed came out of the building and stood at the building side of the children's playground.  You and Tsiavis were at the carpark side of the playground.

14At approximately 12.17 pm, Mohamed was at the front of the Derby Street flats and was moving back and forth and away from you, who at that time was standing between some parked cars. 

15You then produced a high powered firearm and Tsiavis produced a handgun before firing a total of six shots in the direction of Mr Mohamed.  You and Tsiavis fired these shots while standing in the driveway of 70 Derby Street in Kensington and on the footpath in the grass area of the driveway of this address across the children's playground.  That is Count 1, reckless conduct endanger life.

16On that day CCTV from the Derby Street flats captures a bullet hitting the ground and knocking dirt up into the air with Mr Mohamed moving back and forth hiding between two trees to avoid getting shot.  The CCTV also shows Mohamed holding up his right hand in a gesture similar to that of holding and firing a handgun towards you and Mr Tsiavis.

17The bullets fired by yourself and Tsiavis hit nearby trees and the building of Derby Street flats going through the security mesh wall, glass window and the plaster. One projectile was lodged in the front security door screen of a ground-floor unit. 

18No person was hit or injured as a result of the shooting.  You and Tsiavis have then left the area, got back into your car and were driven away.

19The Ballistics' Unit of Victoria Police examined the crime scene and the Derby Street flats.  Police located a .223 calibre fired cartridge cases from your firearm in the grass and under the parked car on the east side of the children's playground.  A further two .22 calibre unfired rounds and .22 calibre cases from Mr Tsiavis' firearm were located in the same area within the grass and footpath next to the children's playground.

20The two trees Mohamed was hiding behind sustained some damage as a result of being hit by bullets.  There was damage to the building in Derby Street, to the security mesh wall, the glass window and the plaster trim from the bullets penetrating the building.  This damage is located behind where Mohamed was standing at the time that the shots were fired at him.  A projectile from Mr Tsiavis' .22 calibre firearm was lodged into the security door of unit three in a direct line from where you and Tsiavis were firing towards Mohamed.

21You told police after your arrest that Mohamed had a gun and appeared to be shooting at you.  Mohamed was arrested by police and forensic samples were taken from him after the arrest at approximately 6.30pm on the same day.  Mohamed denied having a gun and refused to make a statement about the shooting. 

22Following forensic analysis, no gunshot residue was found on the clothes seized from Mohamed or on the samples taken from his hands.  Mohamed was subsequently excluded as a suspect in this matter.

23Mohamed was the subject of compulsory examination under s.103 of Criminal Procedure Act, which was granted and heard on 13 March 2018. Mohamed did not cooperate with investigators. 

24The background of this offending is that it is alleged that Mohamed assaulted Adem in the past.  Mohamed also has allegedly assaulted a friend of yours, Ms Lovett shortly prior to your shooting attack on him.  This criminal offending by you has all the hallmarks of “payback”, “vendetta” and taking law into your own hands.

25The second charge on the indictment arises from your arrest by police at the Mantra Hotel in Preston on 13 July 2017.  When you were arrested, you were in possession of:

·    a loaded homemade firearm which was secreted in your pants containing a .22 calibre bullets;

·    a mixture of calibres of 25 bullets in your pockets;

·    a Samsung mobile phone, being the mobile phone referred to in this offending;

·    a pair of knuckle dusters;

·    a pair of white Nike runners;

·    two ski face masks; and

·    a single .22 calibre bullet located in a sunglasses case.

26In your hotel room, other items were seized:

·a navy and grey coloured zip-up hooded jumper;

·a black coloured silencer firearm;

·a pair of “Connor” dark coloured blue jeans which you were seen in the CCTV;

·a blue coloured “Herschel” backpack which was also carried by Tsiavis on the CCTV through at Moonee Ponds and Drummond Street flats; and

·clothing worn by you on the CCTV at the Drummond Street flats.

27You were interviewed by police and told them the following:

·You admitted to being in possession of a homemade firearm, knuckledusters, bullets and some masks at the time of your arrest.  You stated you had a gun because you were scared in case they came back and tried to kill you;

·You had known Cherkera Lovett since you were a kid;

·That you have got a video call from somebody on Facebook who was pistol whipping Lovett and threatened to kill her if you did not go there;

·The guy with her, he kidnapped her;

·He told you to come to Kensington or he would kill her;

·That he was terrorising everyone and bashing her (that is Ms Lovett);

·That it was at the Derby Street flats;

·That you were there around about 12 o'clock;

·That the male you were talking about was African;

·The male's name was Fab;

·That he gets out of the vehicle;

·That you were standing diagonal in front of the building on Derby Street;

·That the area is empty, it’s just a park;

·That you got out of the car and walked;

·That you were sitting in the back passenger seat;

·That you saw Cherkera for about four minutes after he got there;

·That you were supposed to go there by yourself;

·That you were in the carpark;

·That you heard a loud bang and knew it was a gunshot;

·That you were looking at him pointing at you;

·That the car you came in was black in colour;

·That you were a passenger in the back and not behind the driver;

·That the vehicle belonged to a black girl as you described her;

·The girl was in the car and she remained in the car;

·That the African and the Koori girl were in the car while they were on their way to pick up Cherkera;

·That there was another bloke in the car;

·That you had a conversation with police about a male who he described as a wog with a name starting with “T” and “looked kind of Aussie” (You were referring to your co-accused);

·That you had a conversation with police about being in possession of a firearm;

·That you ended up on the footpath;

·You identified yourself in the CCTV in Drummond Street, Carlton.

·That your intention was to save the guy and fight the guy in a punch on;

·You stated that you had a single shot with him;

·That your gun was unloaded;

·That you had a gun but thought they’d put them down and “duke” it out;

·That your gun only had replica shells (imitation ammunition); and

·That the bullets found near the scene of the crime, where you were standing must have just fallen out.

28You have tried to put the best interpretation you could on a very dangerous criminal act by you.

Personal Circumstances

29You were 23 years old at the time of the offence.  You are now 25.  You have been in remand for these offences since your arrest on 13 July 2017.  You are the youngest of a three-brother sibship.  One of your brother's committed suicide last year.  Your surviving brother works in the superannuation industry.

30Your parents separated when you were six years old.  You report to Jeffrey Cummins, psychologist, that both parents were physically abusive toward you.  Your mother is an alcoholic and you have little to do with her.  Your father has re-partnered and you have reengaged with him since you were approximately 13 years old.

31Your education has been disrupted.  You were expelled from Wales Street Primary School in Thornbury when you were in Grade 2.  You were later expelled from St Brigid's Primary School in Fitzroy at Grade 6 level for fighting.  You lasted one term at Fitzroy Secondary College before being expelled for fighting.  You finished your education at Northland Secondary College where you completed Certificate III in Automotive Studies.

32You have a seven year old son from a previous relationship.  You are banned from seeing him. 

33You have a sparse work history which included factory work and scrap metal yard job.  You have not worked since you were about 20 due to domestic issues and contact with the criminal justice system. 

34You have a history of drug abuse.  In 2015, you sought assistance from Carineche to deal with your ice addiction.  You have also used GHB, Xanax and Valium.

35In the year leading up to these offences, your use of ice was escalating.  You told Mr Cummins that at the time of your offending on 8 June 2017, you were using methamphetamine and Xanax in combination.  This is not a mitigating factor in your sentence.

36Mr Cummins' report dated 31 July 2018, has assessed you as a moderate risk of committing offences of violence in the future.  Mr Cummins assessed your presentation as “mildly anxious and mildly depressed”. 

37You have an extensive criminal history.  Your first appearance for violent offending was on 18 December 2008 at the Melbourne Children's Court.  You have been sentenced to imprisonment for violent offending in the past.  You have also been sentenced for being a prohibitive person in possession of a firearm in the past. Despite these previous stints in gaol, your offending on this occasion is an escalation in violence and seriousness of offending.  Short terms of imprisonment in the past have not had any satisfactory effect on your behaviour.

38Unsurprisingly, there is no victim impact statement.  Your victim is in custody for other matters and the code of silence and non-cooperation with the authorities is well in place here.

Sentencing Considerations

39The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for them, your personal circumstances and those of your victim. I am required to balance those interests with the interest of the community in denouncing your criminal conduct with the interest of the community and seeking to ensure as far as possible, you as an offender are rehabilitated and reintegrated into society.

40You have pleaded guilty to these charges and it was indicated at the committal proceedings.  Your plea has utilitarian value allowing for the orderly and effective administration of justice.  There was a certainty of outcome and a resolution of substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set out to protect the community.

41You have by your plea, relieved your victim from giving evidence against you in a trial.  Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal conduct in this case.  Your plea also recognises you are willing to facilitate the course of justice in the community. I also accept that your plea to these charges indicates and demonstrates some remorse on your part.

42As part of the governing principles to be considered in sentencing you, I must take into account current sentencing practices.  That inquiry is directed particularly but not exclusively at the kinds of sentences imposed in comparable cases and the statistics relating to those sentences. I have considered those statistics and the current sentencing practices mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.  I take into account the sentencing practices. Of course current sentencing practices are just one of the sentencing considerations I must take into account. 

43Mr Dickenson submitted that you were to be sentenced as a youthful or young offender.  At the time of the offence, you were 23, nearly 24 years old.  You are now 25.  You have had a dysfunctional family life and a very disruptive educational pathway to adulthood.

44In the case of Mills, three propositions of sentencing were set out;

(1) the youth of offender particularly a first offender, that is not you, should be the primary consideration a sentencing court where the matters are properly raised; and

(2) in a case of a youthful offender, rehabilitation is usually far more important than general deterrence. 

This is because punishment may in fact lead to further offending thus for example the individualised treatment.  A focus on rehabilitation is preferred; and the third proposition in Mills' case is not relevant to you because the only place of incarceration for a person of your age is adult prison.

45In more recent times, the Court of Appeal in R v Wyley [2009] VSCA 17 has made pronouncements on the consideration of youth and sentencing practices. In that case, Maxwell P stated as follows,

"Mills constantly reminds sentencing courts, and this Court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But the consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a longer period of imprisonment, rather than a non-custodial sentence.  Thus understood, the later cases of DPP v Lawrence and R v Nguyen, are not to be viewed as 'excluding the principles in Mills', but simply as instances of how those principles are to be applied."

46The offending in this case calls for due weight to be given to the principles of general deterrence and protection of the community.  This was raised in the case of Azzopardi v R [2011] VSCA 372 where Redlich JA, Coghlan and Macaulay AJJA stated as follows,

"The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and the protection of the community become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth.  But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration due to youth as all but extinguished."

47A substantial imprisonment sentence is the only appropriate disposition given your significant criminal history over your short life and the nature of your offending in this case.

48In respect of Charge 1, on the indictment the relevant factors to take into account when assessing the seriousness of the offence are;

(1) the planning of the offence itself;

(2) the discharging of firearms across a child's playground or children's playground in the forecourt of an area of a public housing estate;

(3) the offending was in broad daylight;

(4) there was a background of vendetta, payback and taking law into your own hands in this offence;

(5) the level of risk of injury or death to your intended victim or some innocent bystander was high; and

(6) the offending in your case occurred whilst you were on bail.  This offending calls for denunciation.

49In respect of Charge 2, on the indictment the relevant factors to take into account when assessing the seriousness of the offence are;

(1) you have a prior offence for precisely this kind of activity;

(2) you had a modified gun shown in the exhibit photograph;

(3) here is a different gun from the gun you fired in Charge 1 offending some five weeks beforehand;

(4) your possession of the firearm was according to your answers in the record of interview for your protection; and

(5) I find your possession of the firearm was just part of your ongoing lifestyle of mixing in a drug-culture milieu as set out in the prosecution opening.

50When sentences are imposed for numerous offences as in this case, a sentencing judge must stand back and look at the overall picture and decide whether the total of what would otherwise have been an appropriate sentence is fair and reasonable total sentence to impose on you.  This is the totality principle. In Thomas' Principle Of Sentencing, he stated this as follows,

"The effect of the totality principle is to require the sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence considering whether the aggregate is 'just and appropriate'.  The principle has been stated many times in various forms."

51In particular, I note that the related summary offence of offending whilst on bail is a consideration in assessing the seriousness of the conduct endangering life charge and cumulation of those charges much be carefully assessed when applying the totality principle.

52I assess your prospects of rehabilitation as relatively poor.  You are not a lost cause at your age.  Mr Dickenson submitted that you are a risk of becoming institutionalised.  

53The balancing factor of that submission is that you have offended in a very serious manner.  The offending was not an isolated offence.  Your offending calls for stern punishment to satisfy the sentencing requirements of general and specific deterrence, just punishment, denunciation of your criminal conduct and the protection of the community.

54Would you stand please?

55On Charge 1, you are convicted and sentenced to three years and three months.  That is the base sentence.

56On Charge 2, you are convicted and sentenced to 18 months' imprisonment.

57For the summary charge of offending whilst on bail, you are convicted and sentenced to one month imprisonment.

58I direct that nine months of the sentence in Charge 2 on the indictment be served cumulatively on the sentence in Charge 1.

59

That is a total effective sentence of four years' imprisonment.  I will fix a

non-parole period of two years and nine months.

60Your pre-sentence detention I have calculated at 403 days not including this day.  I will make ancillary orders of forfeiture and disposal when I am handed them. The s.6AAA declaration is but for you plea of guilty, I would have sentenced you to five years with a minimum period of three and a half years before you are eligible for parole.